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Derrickson v. Derrickson, [1986] 1 S.C.R. 285

 

Rose Derrickson  Appellant;

 

and

 

William Joseph Derrickson                                                               Respondent;

 

and

 

The Attorney General of Canada, the Attorney General of British Columbia and the Attorney General for Ontario       Interveners.

 

File No.: 18712.

 

1985: November 6, 7; 1986: March 27.

 

Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest JJ.

 

 

on appeal from the court of appeal for british columbia

 

                   Constitutional law ‑‑ Indians and lands reserved for Indians ‑‑ Provincial legislation dealing with the division of family assets not applicable to Indian reserved lands ‑‑ Right of ownership or possession of lands on an Indian reserve within federal exclusive jurisdiction ‑‑ Constitution Act, 1867, s. 91(24)  ‑‑ Family Relations Act, R.S.B.C. 1979, c. 121, ss. 43 to 55 ‑‑ Indian Act, R.S.C. 1970, c. I‑6, ss. 18, 20, 24.


 

                   Indians ‑‑ Reserved lands ‑‑ Division of matrimonial property following divorce ‑‑ Conflict between federal Indian Act  and provincial legislation dealing with the division of family assets ‑‑ Provincial legislation not applicable to Indian reserved lands ‑‑ Family Relations Act, R.S.B.C. 1979, c. 121, ss. 43 to 55 ‑‑ Indian Act, R.S.C. 1970, c. I‑6, s. 88.

 

                   Family law ‑‑ Division of matrimonial property following divorce ‑‑ Application under provincial legislation for declaration of interest in Indian lands ‑‑ Provincial legislation not applicable to Indian reserved lands ‑‑ Compensation in lieu of division of property awarded ‑‑ Family Relations Act, R.S.B.C. 1979, c. 121, ss. 43 to 55 ‑‑ Indian Act, R.S.C. 1970, c. I‑6, ss. 18, 20, 24, 88.

 

                   The parties, husband and wife, are members of an Indian Band located in British Columbia. The appellant brought a petition for divorce and made an application under Part 3 of the Family Relations Act for one‑half of the interest in the properties for which her husband held Certificates of Possession issued pursuant to s. 20  of the Indian Act , or for compensation in lieu of division. The Supreme Court of British Columbia dismissed the application. On appeal, the Court of Appeal concluded that the appellant was not entitled to an interest in the Indian reserved lands but made an order for compensation for the purpose of adjusting the division of family assets between the spouses. This appeal is to determine whether the provisions of the Family Relations Act of British Columbia dealing with the division of family assets are applicable to lands in a reserve held by an Indian.

 

                   Held: The appeal should be dismissed.

 

                   The provisions of the Family Relations Act dealing with the right of ownership and possession of immovable property, while valid in respect of other immovable property, cannot apply to lands on an Indian reserve. When provincial legislation, given the generality of its terms, extends beyond the matter over which the legislature has jurisdiction and over a matter of federal exclusive jurisdiction, it must, in order to preserve its constitutionality, be read down and given the limited meaning which will confine it within the limits of the provincial jurisdiction. The right to possession of lands on an Indian reserve is of the very essence of the federal exclusive legislative power under s. 91(24)  of the Constitution Act, 1867 . It follows that provincial legislation cannot apply to the right of possession of Indian reserve lands.

 

                   Further, even assuming that s. 88  of the Indian Act  applies to lands reserved for the Indians, the impugned provisions of the Family Relations Act cannot be referentially incorporated in the Indian Act  since they are excluded by the application of the federal paramountcy set out in the section. Provisions such as are made in s. 52 of the Family Relations Act for orders dealing with ownership, right of possession, transfer of title, partition or sale of property, severance of joint tenancy are in actual conflict with the provisions of the Indian Act .

 

                   Where an equal division is not possible, like in this case, because some assets cannot be divided, the court may pursuant to s. 52(2)(c) of the Family Relations Act award compensation for the purpose of adjusting the division of family assets between the spouses. There is no inconsistency between such a provision for compensation between spouses and the Indian Act .

 

Cases Cited

 

                   Dick v. The Queen, [1985] 2 S.C.R. 309; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; Surrey (Corpn.) v. Peace Arch Enterprises Ltd. (1970), 74 W.W.R. 380, referred to.

 

Statutes and Regulations Cited

 

Constitution Act, 1867, s. 91(24) .

 

Family Relations Act, R.S.B.C. 1979, c. 121, ss. 43, 45, 48 to 55.

 

Indian Act, R.S.C. 1970, c. I‑6, ss. 18 , 20 , 24 , 25 , 28 , 29 , 37 , 42  to 50 , 53 , 81 , 88 , 89 .

 

 

Authors Cited

 

Hogg, P. W. Constitutional Law of Canada, 2nd ed., Toronto, Carswells, 1985.

 

Lysyk, K. M. "Constitutional Developments Relating to Indians and Indian Lands: an Overview," [1978] L.S.U.C. Special Lectures 201.

 

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1984), 9 D.L.R. (4th) 204, 38 R.F.L. (2d) 1, 51 B.C.L.R. 42, [1984] 2 W.W.R. 754, [1984] 3 C.N.L.R. 58, dismissing appellant's application for a division of family assets pursuant to the provisions of the Family Relations Act of British Columbia. Appeal dismissed.

 

                   Richard R. Sugden and A. Roos, for the appellant.

 

                   Gary S. Snarch and G. Kopelow, for the respondent.

 

                   Howard R. Eddy, for the intervener the Attorney General of British Columbia.

 

                   J. T. S. McCabe, Q.C., for the intervener the Attorney General for Ontario.

 

                   W. B. Scarth, Q.C., and T. B. Marsh, for the intervener the Attorney General of Canada.

 

                   The judgment of the Court was delivered by

 

1.                Chouinard J.‑‑The constitutional question stated in this appeal is as follows:

 

Whether the provisions of Part 3 of the Family Relations Act, R.S.B.C. 1979, c. 121, dealing with the division of family assets, are constitutionally applicable to lands in a reserve held by an Indian, in view of the Indian Act, R.S.C. 1970, c. I‑6?

 

2.                The factual background is summarized by Hinkson J.A., who wrote the unanimous judgment of the Court of Appeal of British Columbia, [1984] 2 W.W.R. 754, at p. 755:

 

                   The appellant wife and the respondent husband are members of the Westbank Indian Band. Each of them holds certificates of possession issued to them pursuant to the provisions of the Indian Act, R.S.C. 1970, c. I‑6.

 

                   The wife brought a petition for divorce and for other relief including a division of family assets pursuant to the provisions of the Family Relations Act, R.S.B.C. 1979, c. 121.

 

                   At trial, the trial judge raised with counsel the question of whether the provisions of the Family Relations Act applied to lands allotted to the spouses by the Westbank Indian Band and for which they held certificates of possession issued pursuant to s. 20  of the Indian Act .

 

                   The wife sought a declaration pursuant to Pt. 3 of the Family Relations Act that she was entitled to an undivided one‑half interest in the properties for which her husband held certificates of possession. The husband resisted that claim for relief on the basis that if the lands in question were family assets as defined in the Family Relations Act, then that Act had no application to the lands because they were Indian lands.

 

3.                It should be added that the order sought by the appellant is conditional, i.e. subject to ministerial approval. It should further be mentioned that the order for compensation made by the Court of Appeal "for the purpose of adjusting the division", in lieu of an order on a division of property is also at issue.

 

4.                The relevant sections of Part 3 of the Family Relations Act, "Matrimonial Property", that need to be reproduced are ss. 43, 51 and subss. (1) and (2) of s. 52:

 

5.                Section 43 is preceded by the heading: "Equality of entitlement to family assets on marriage breakup". It reads:

 

                   43. (1) Subject to this Part, each spouse is entitled to an interest in each family asset on or after March 31, 1979 when

 

(a) a separation agreement;

 

(b) a declaratory judgment under section 44;

 

(c) an order for dissolution of marriage or judicial separation; or

 

(d) an order declaring the marriage null and void

 

respecting the marriage is first made.

 

                   (2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.

 

                   (3) An interest under subsection (1) is subject to

 

(a) an order under this Part; or

 

(b) a marriage agreement or a separation agreement.

 

                   (4) This section applies to a marriage entered into before or after this section comes into force.

 

6.                Section 51 reads:

 

                   51. Where the provisions for division of property between spouses under section 43 or their marriage agreement, as the case may be, would be unfair having regard to

 

(a) the duration of the marriage;

 

(b) the duration of the period during which the spouses have lived separate and apart;

 

(c) the date when property was acquired or disposed of;

 

(d) the extent to which property was acquired by one spouse through inheritance or gift;

 

(e) the needs of each spouse to become or remain economically independent and self sufficient; or

 

(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,

 

the Supreme Court, on application, may order that the property covered by section 43 or the marriage agreement, as the case may be, be divided into shares fixed by the court. Additionally or alternatively the court may order that other property not covered by section 43 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse.

 

7.                Section 52 is preceded by the heading: "Determination of ownership, possession or division". It reads:

 

                   52. (1) In proceedings under this Part or on application, the Supreme Court may determine any matter respecting the ownership, right of possession or division of property under this Part, including the vesting of property under section 51, and may make orders which are necessary, reasonable or ancillary to give effect to the determination.

 

                   (2) In an order under this section, the court may, without limiting the generality of subsection (1), do one or more of the following:

 

(a) declare the ownership of or right of possession to property;

 

(b) order that, on a division of property, title to a specified property granted to a spouse be transferred to, or held in trust for, or vested in the spouse either absolutely, for life or for a term of years;

 

(c) order a spouse to pay compensation to the other spouse where property has been disposed of, or for the purpose of adjusting the division;

 

(d) order partition or sale of property and payment to be made out of the proceeds of sale to one or both spouses in specified        proportions or amounts;

 

(e) order that property forming all or a part of the share of either or both spouses be transferred to, or in trust for, or vested in a child;

 

(f) order that a spouse give security for the performance of an obligation imposed by order under this section, including a charge      on property; or

 

(g) where property is owned by spouses as joint tenants, sever the joint tenancy.

 

8.                Section 20 of the Indian Act, R.S.C. 1970, c. I‑6, deals with possession and occupation of land in a reserve and with Certificates of Possession and Certificates of Occupation:

 

                   20. (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.

 

                   (2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.

 

                   (3) For the purposes of this Act, any person who, on the 4th day of September 1951, held a valid and subsisting Location Ticket issued under The Indian Act, 1880, or any statute relating to the same subject‑matter, shall be deemed to be lawfully in possession of the land to which the location ticket relates and to hold a Certificate of Possession with respect thereto.

 

                   (4) Where possession of land in a reserve has been allotted to an Indian by the council of the band, the Minister may, in his discretion, withhold his approval and may authorize the Indian to occupy the land temporarily and may prescribe the conditions as to use and settlement that are to be fulfilled by the Indian before the Minister approves of the allotment.

 

                   (5) Where the Minister withholds approval pursuant to subsection (4), he shall issue a Certificate of Occupation to the Indian, and the Certificate entitles the Indian, or those claiming possession by devise or descent, to occupy the land in respect of which it is issued for a period of two years from the date thereof.

 

9.                Section 24 of the same Act deals with transfer of possession by an Indian to the band or to another member of the band:

 

                   24. An Indian who is lawfully in possession of lands in a reserve may transfer to the band or to another member of the band the right to possession of the land, but no transfer or agreement for the transfer of the right to possession of lands in a reserve is effective until it is approved by the Minister.

 

The Judgment of the Supreme Court

 

10.              The trial judge determined that the Family Relations Act is a law of general application in the province. He found that its provisions are inconsistent with those of the Indian Act . Applying the doctrine of paramountcy, he concluded that he had no jurisdiction to make an order under Part 3 of the Family Relations Act dealing with the parties' lands on the Westbank Indian Reserve.

 

11.              The trial judge further concluded that since there could be no division of the reserve lands under s. 43, there could be no determination of what "would be unfair" within the meaning of s. 51 and in the result he could not order compensation under s. 52(2)(c) in lieu of directing a division of the reserve lands, "for the purpose of adjusting the division".

 

The Judgment of the Court of Appeal

 

12.              The Court of Appeal was of the view that a decree in favour of the appellant would necessarily involve the possession of Indian land. Relying on its own judgment in Surrey (Corpn.) v. Peace Arch Enterprises Ltd. (1970), 74 W.W.R. 380, as commented on by this Court in Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695, the Court concluded that such a decree was impossible.

 

13.              Turning to s. 88  of the Indian Act , the Court concluded that there could be no referential incorporation because s. 88  is inapplicable to Indian lands since it mentions Indians but does not mention lands reserved for the Indians.

 

14.              On the subject of paramountcy, the Court found that there is a conflict between the Indian Act  and the Family Relations Act and that consequently the latter cannot apply to Indian reserve lands.

 

15.              The Court took the view that compensation for the purpose of adjusting the division could be awarded under s. 52(2)(c) and it remitted the matter to the trial judge in order that he might complete the disposition of the family assets accordingly.

 

The Interveners

 

16.              Before this Court, the Attorney General of British Columbia and the Attorney General of Ontario intervened in support of the appellant, the Attorney General of Canada in support of the respondent.

 

The Issues

 

17.              In the case at bar it is common ground that the Family Relations Act is valid provincial legislation of general application. Beyond that the arguments developed in this Court were many and varied, and not always congruent even when supporting the same conclusions.

 

18.              With respect, however, this appeal can in my view be resolved by consideration of the three following issues:

 

1.  Are the provisions of the Family Relations Act applicable of their own force to lands reserved for the Indians?

 

2.  Is the Family Relations Act referentially incorporated in the Indian Act  by the application of s. 88 of the latter Act?

 

19.              This issue in turn breaks down into two:

 

(a)  Does s. 88 of the Indian Act  apply to lands reserved for the Indians?

 

(b)  In the affirmative, do the provisions of the Family Relations Act fall within one of the exceptions in s. 88?

 

3.  Can an order for compensation be made in accordance with s. 52(2)(c) of the Family Relations Act with respect to lands on a reserve in lieu of an order directing division of property?

 

   1.             Are the Provisions of the Family Relations Act Applicable of Their Own Force to Lands Reserved for the Indians?

 

20.              Section 91(24)  of the Constitution Act, 1867  confers exclusive legislative authority on the Parliament of Canada in "all Matters" coming within the subject "Indians, and lands reserved for the Indians."

 

21.              Title to reserve lands is vested in the Crown, federal or provincial. So long as they remain such, reserve lands are administered by the Federal Government and Parliament has exclusive legislative authority over them. The Indian Act , enacted under that authority, provides in s.18(1) :

 

                   18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart; and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

 

22.              The purpose of the above subsection is to ensure that lands reserved for Indians are and remain used for the use and benefit of the band.

 

23.              Under s. 20 already cited, possession of lands in a reserve is allotted to individual members of the band by the band council with the approval of the Minister of Indian Affairs and Northern Development who issues a Certificate of Possession.

 

24.              By virtue of s. 24 cited above, a member of the band may transfer his right to possession only to the band or to another member of the band but no such transfer is effective until it is approved by the Minister.

 

25.              I turn now to the provisions of the Family Relations Act.

 

26.              Section 43 declares that each spouse is entitled to an undivided half‑interest in each family asset upon the occurrence of certain events, in this case an order for dissolution of marriage.

 

27.              Section 45 defines as a family asset property used for a family purpose.

 

28.              Sections 48 and 49 deal with the effect of marriage and separation agreements upon family assets and provide for the filing, in the land title office, of a notice setting out the provisions of the marriage or separation agreement relating to the land in question.

 

29.              Section 50 provides for the enforceability of a spouse's interest in matrimonial property.

 

30.              Section 51 deals with judicial reapportionment of matrimonial property where the division under s. 43 or a marriage agreement would be unfair.

 

31.              Section 52, already reproduced, governs the determination of the ownership, possession or division of matrimonial property.

 

32.              Section 53 allows the court to make interim orders in respect of matrimonial property.

 

33.              The appellant argues that the pith and substance of the Family Relations Act is the division of matrimonial property, not the use of Indian lands. She further argues that it in no way encroaches on the exclusive federal jurisdiction as to the use of Indian lands. She is supported in these views by the Attorney General of British Columbia and the Attorney General of Ontario.

 

34.              With respect I do not accept the latter proposition where Indian lands are involved.

 

35.              The various orders that can be made under s. 52(2) deal inter alia with ownership, right of possession, transfer of title, partition or sale of property, severance of joint tenancy.

 

36.              K. M. Lysyk, "Constitutional Developments Relating to Indians and Indian Lands: an Overview", in [1978] L.S.U.C. Special Lectures 201, writes at p. 227, footnote 49:

 

As to what is embraced within provincial "land law" in this sense, Laskin, C.J. observed in Morgan v. Attorney General for Prince Edward Island, [1976] 2 S.C.R. 349 at 357, that: "The power of a provincial legislature to regulate the way in which land in the province may be held, how it may be transferred, how it may be used (and this, whether the land be privately owned or be land held by the Crown in right of the province) is not contested." By analogy, presumably the matters contained within exclusive federal authority over Indian reserve lands include regulation of the manner of land‑holding, disposition of interests in reserve lands and how reserve lands may be used (e.g., zoning regulations).

 

37.              I cannot but agree with the Attorney General of Canada who writes in his factum:

 

                   In essence, Part 3 of the Family Relations Act is legislation which regulates who may own or possess land or other property. Its true nature and character is to regulate the right to the beneficial use of property and its revenues and the disposition thereof.

 

38.              I also agree with the following submission of the Attorney General of Canada:

 

To paraphrase the ratio of the Court below: if one is declared to be entitled to an interest in a Certificate of Possession issued pursuant to section 20  of the Indian Act  then one has a right to possess the lands to which the Certificate applies and hence the right to use those lands.

 

39.              The Attorney General of British Columbia submitted on the other hand that what the Indian Act  seeks to protect is the band interest, the group interest in lands, not the individual interest. By an order under the Family Relations Act only the latter would be affected.

 

40.              In my view that proposition is erroneous. As put by the respondent:

 

The interest of an Indian Band in its reserve lands is not limited to a reversionary interest, but includes an interest in ensuring that the present use of lands is for the benefit of the Band. Section 20  of the Indian Act  gives the Band Council authority to allocate possession of reserve lands to individual band members. Section 60  provides that the Band may be given additional powers to manage reserve lands. By reallocating possession of reserve land, Part 3 of the Family Relations Act would significantly impact on the ability of the Band and the federal Crown to ensure that reserve lands are used for the benefit of the Band.

 

41.              The right to possession of lands on an Indian reserve is manifestly of the very essence of the federal exclusive legislative power under s. 91(24)  of the Constitution Act, 1867 . It follows that provincial legislation cannot apply to the right of possession of Indian reserve lands.

 

42.              When otherwise valid provincial legislation, given the generality of its terms, extends beyond the matter over which the legislature has jurisdiction and over a matter of federal exclusive jurisdiction, it must, in order to preserve its constitutionality, be read down and given the limited meaning which will confine it within the limits of the provincial jurisdiction.

 

43.              It follows that the provisions of the Family Relations Act dealing with the right of ownership and possession of immovable property, while valid in respect of other immovable property, cannot apply to lands on an Indian reserve.

 

   2.             Is the Family Relations Act Referentially Incorporated in the Indian Act  by the Application of s. 88 of the Latter Act?

 

44.              With respect to Indians, valid provincial legislation of general application which would normally have to be read down in order to preserve its constitutionality, may be made applicable to Indians by referential incorporation in the Indian Act  through the operation of s. 88 of the Act, subject to the exceptions stated in the section.

 

45.              Section 88  of the Indian Act  reads:

 

                   88. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by‑law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

 

46.              It is now settled that the provincial laws of general application to which s. 88  refers are those laws which could not apply to Indians without regulating them qua Indians. It is also settled that those laws that are made applicable to Indians by the operation of s. 88  are not applicable to them ex proprio vigore but are so made applicable by referential incorporation in the Indian Act . See Dick v. The Queen, [1985] 2 S.C.R. 309.

 

47.              In that case it was held that the Wildlife Act, R.S.B.C. 1979, c. 433, is a law of general application and that it applies to a non‑treaty Indian either by its own force or, assuming the Wildlife Act has the effect of regulating him qua Indian, by referential incorporation under s. 88  of the Indian Act .

 

48.              It is far from settled however that s. 88  contemplates referential incorporation with respect to lands reserved for the Indians.

 

49.              It follows that the provisions of the Family Relations Act at issue will be found not to be referentially incorporated in the Indian Act  if s. 88  does not apply to lands reserved for the Indians.

 

50.              If it were found that s. 88  does apply to Indian lands, the provisions of the Family Relations Act would still not be referentially incorporated if they fall within one of the exceptions provided for in that section. Hence the two following questions.

 

  (a)             Does s. 88 of the Indian Act  Apply to Lands Reserved for the Indians?

 

51.              In the appellant's submission, s. 88 is irrelevant with respect to Indian lands because it refers to Indians, not Indian lands. This case in her view stands to be decided by application of the doctrine of paramountcy and there being no "actual conflict" between the Family Relations Act and the Indian Act , the former is applicable to Indian lands.

 

52.              The position of the Attorney General of British Columbia in this respect is essentially the same.

 

53.              The Attorney General of Ontario took the position that s. 88 does apply to Indian lands. I will return to this later. In his view, therefore, s. 88 referentially incorporates the Family Relations Act. But he made no submissions as to paramountcy.

 

54.              The respondent did not deal with the question whether s. 88 applies to Indian lands. Quite apart from s. 88 he argued that there was "actual conflict" between the two acts and that consequently the Family Relations Act was inapplicable to reserve lands.

 

55.              The Attorney General of Canada took the position that s. 88 does not apply to Indian lands. As to paramountcy his position was along the same lines as that of the respondent.

 

56.              I have already determined that the impugned provisions of the Family Relations Act are not applicable of their own force to lands reserved for the Indians. They could be made applicable only if s. 88 applies to reserve lands and then only if the provisions of the Family Relations Act do not fall within one of the exceptions provided for in that section.

 

57.              The submission that s. 88 does not apply to lands reserved for Indians is quite simple. It is to the effect that not one but two subject matters are the object of s. 91(24)  of the Constitution Act, 1867 , namely: "Indians" and "Lands reserved for the Indians". Since only Indians are mentioned in s. 88 , that section would not apply to lands reserved for the Indians.

 

58.              As already mentioned the Attorney General of Ontario took the opposite view. He presented the following argument:

 

                   The legislative authority of Parliament under section 91(24)  extends to two subjects (i.e., "Indians" and "Lands reserved for the Indians"). It is sometimes said that this fact means that section 88  of the Indian Act  does not have the same effect where the provincial legislation of general application in question is in relation to lands as it has when the legislation is not in relation to lands. That is, because the language of section 88  concerns the applicability of provincial laws of general application "to and in respect of Indians" but does not mention "Lands reserved for the Indians", therefore, it is said, section 88  has no effect where the provincial legislation in question is in relation to lands.

 

                   It is submitted that this view is in error. The purpose and effect of section 88  is to limit the applicability to Indians of provincial laws of general application by enacting that such laws are "subject to the terms of any treaty" and subject to the expanded doctrine of federal paramountcy set out in the section. Pursuant to its legislative authority under section 91(24)  of the Constitution Act, 1867 , Parliament has enacted, in section 88  of the Indian Act , law concerning the exposure of Indians to "all laws of general application from time to time in force in any province". It makes no difference whether those laws are in relation to lands or some other class of subjects. In either event, they are applicable to Indians subject to the limits prescribed in the section. There is no reason to import into the construction of the words in section 88  the fact that Parliament has, pursuant to section 91(24) , not one but two subjects within its legislative authority.

 

59.              Be that as it may, it is not essential for the resolution of this case to determine the issue if we find, as I think we must, that even assuming that s. 88  applies to lands reserved for the Indians, the impugned provisions of the Family Relations Act are not referentially incorporated in the Indian Act  since they are excluded by the application of the federal paramountcy set out in the section.

 

  (b)             Do the Provisions of the Family Relations Act Fall Within One of the Exceptions in s. 88 ?

 

60.              In P. W. Hogg, Constitutional Law of Canada (2nd ed. 1985), it is stated at pp. 561‑62:

 

                   The importance of s. 88  lies in its definition of the laws that do not apply to Indians. The section is explicitly "subject to the terms of any treaty", which means that any conflict between a treaty made with the Indians and a provincial law of general application has to be resolved in favour of the treaty provision, thus reversing the normal rule for such conflicts.

 

                   The section is also subject to "any other act of the Parliament of Canada", so that any conflict between a federal statute and a provincial law has to be resolved in favour of the federal statute. A provincial law is also inapplicable where it is "inconsistent with this Act or any order, rule, regulation or by‑law made thereunder". These two parts of the section seem to be intended to make clear that the paramountcy doctrine applies to provincial laws, notwithstanding their adoption by a federal statute. However, the closing language of the section goes on to provide that the provincial laws are applicable "except to the extent that such laws make provision for any matter for which provision is made by or under this Act". This language in its context seems to contemplate that a provincial law which makes provision for any matter for which provision is made by (or under) the Indian Act  must yield to the provisions of the Indian Act . The doctrine of paramountcy, on the other hand, at least as it has been interpreted recently, applies only where there is an express contradiction between a federal and a provincial law. It does not apply where the federal and provincial laws, while not in direct conflict, are merely occupying the same field, or in other words making provision for the same matters. It seems probable therefore that the closing words of s. 88  go further than the paramountcy doctrine and will render inapplicable to Indians some provincial laws which would have been applicable under the general law.

 

61.              As to the paramountcy doctrine the test now most often referred to is that set out in Multiple Access Ltd v. McCutcheon, [1982] 2 S.C.R. 161, where Dickson, J., as he then was, wrote, for the majority, at p. 191:

 

In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other.

 

62.              That test is contemplated by s. 88  where it is said that laws of general application are applicable to Indians "except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by‑law made thereunder...."

 

63.              Applying that test the Court of Appeal found an "actual conflict". Hinkson J.A. wrote for the Court, at p. 760:

 

                   In the present case, in my opinion, applying the test in the Multiple Access case, there is an actual conflict between the provisions of the Indian Act  and the Family Relations Act. Implicit in the submissions of counsel for the wife and counsel for the Attorney General of British Columbia is an acknowledgement that there is such a conflict. On the one hand the provisions of s. 20  of the Indian Act  do not permit an Indian who is lawfully in possession of lands in a reserve to transfer the right to possession until such transfer is approved by the minister. On the other hand under the Family Relations Act, the court is empowered in dealing with land which is a family asset, to declare the ownership or right of possession to such property, to order the title to a specified property be transferred to a spouse or order partition or sale of such property. If the court exercised the powers granted to it by the Family Relations Act in favour of a spouse, it would result in a conflict with respect to Indian reserve lands as between the order made by the court and the right of the Minister to approve a transfer of the right to possession of such lands. It is for this reason that the court is urged to make a conditional order.

 

                   When this problem is considered in the light of the approach enunciated in the Multiple Access case it is apparent that there is a conflict between the Indian Act  and the Family Relations Act and that in those circumstances the provisions of the Family Relations Act dealing with real property cannot extend to Indian reserve lands. It can have no application.

 

64.              I agree. With respect, in my view, the impugned provisions of the Family Relations Act do conflict with the Indian Act .

 

65.              Section 18  of the Indian Act  provides that reserves are held by Her Majesty for the use and benefit of the bands.

 

66.              Section 20  provides that the possession by an individual Indian can only come through allotment by the council together with the approval of the Minister.

 

67.              Section 24 permits transfer only to the band or to another member of the band and only with the consent of the Minister.

 

68.              Section 25 requires an Indian who leaves the reserve to transfer to another member.

 

69.              Section 28 prohibits any arrangement or occupation save to another member.

 

70.              Section 29 provides that reserve lands are not subject to seizure under legal process.

 

71.              Section 37 exempts reserve lands from execution, prohibits sale or lease except by surrender to Her Majesty.

 

72.              Sections 42 to 47 control testamentary succession.

 

73.              Sections 48 to 50 control distribution of property on intestacy.

 

74.              Section 53 provides that the Minister may lease, for the benefit of any Indian, upon his application for that purpose, the land of which he is lawfully in possession without the land being surrendered.

 

75.              Section 81 provides that, if so authorized by the Governor in Council, under s. 60, the council of a band may make by‑laws for inter alia (i) "the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation".

 

76.              Section 89 prohibits mortgages except to another Indian.

 

77.              Provisions such as are made in s. 52 of the Family Relations Act for orders dealing with ownership, right of possession, transfer of title, partition or sale of property, severance of joint tenancy are, in my view, in "actual conflict" with the above provisions of the Indian Act .

 

78.              Were the provisions of both Acts to be applied at once as was sought in this case, the husband by virtue of his Certificate of Possession issued by the Minister following an allotment by the band council would be entitled to the sole possession of the land while the wife by virtue of an order of the Court would be entitled to a half interest in the Certificate of Possession and the rights flowing therefrom.

 

79.              In my respectful view to make the order conditional on the approval of the Minister would not change the situation. I accept the following submission of the Attorney General of Canada:

 

... since Part 3 of the Family Relations Act dealing with the division of family assets is constitutionally inapplicable to the lands in question, the Supreme Court of British Columbia lacks jurisdiction to make an order pursuant to such legislation relating to said lands, whether expressed to be conditional on the approval of the Minister of Indian Affairs and Northern Development or not.

 

80.              In the result, even assuming that s. 88  of the Indian Act  applies to lands reserved for the Indians, the provisions of the Family Relations Act would, in my opinion, fall within that exception of s. 88  and would not be applicable to lands reserved for the Indians.

 

81.              In reaching this conclusion I am not unmindful of the ensuing consequences for the spouses, arising out of the laws in question, according as real property is located on a reserve or not. In this respect I borrow the following sentence, albeit in a different context, from P. W. Hogg, op. cit., at p. 554:

 

Whether such laws are wise or unwise is of course a much‑controverted question, but it is not relevant to their constitutional validity.

 

   3.             Can an Order for Compensation Be Made in Accordance with s. 52(2)(c) of the Family Relations Act with Respect to Lands on a Reserve in Lieu of an Order  Directing Division of Property?

 

82.              Section 52(2)(c) of the Family Relations Act provides that the Court may "order a spouse to pay compensation to the other spouse where property has been disposed of, or for the purpose of adjusting the division".

 

83.              In this respect the trial judge held:

 

                   As there can be no division of the reserve lands under Section 43 then there can be no determination of what "would be unfair". I, therefore, cannot make a substitution of compensation under Section 52(2)(c) for an "unfair division" under Sections 43 or 51.

 

84.              Reversing on this point the Court of Appeal wrote, at p. 761:

 

                   If the court is unable to award the wife an interest in the Indian reserve lands then the court may make an order for compensation for the purpose of adjusting the division of family assets between the spouses.

 

85.              The Court of Appeal accordingly ordered that the matter be remitted to the trial judge in order that he may complete the disposition of the family assets involved in this proceeding by awarding compensation for the purpose of adjusting the division of family assets between the spouses.

 

86.              With this I agree. If the court may make an order for compensation because division is not possible where property has been disposed of, surely it must be empowered to make such an order "for the purpose of adjusting the division", where property exists but cannot be divided because no division can be made of reserve lands.

 

87.              The rule under s. 43 is that each spouse is entitled to an undivided half interest in all family assets, not immovable property only. Where having regard to the factors listed in s. 51 the division would be unfair, the Court may fix different shares. With this we are not concerned here. Section 52(2)(c) provides for a compensation order "for the purpose of adjusting the division". All family assets having been taken into account, where an equal division is not possible because some assets, in this case lands on a reserve, cannot be divided, I fail to see why a compensation order could not be had.

 

88.              Compensation in lieu of a division of property is not a matter for which provision is made under the Indian Act  and in my view there is no inconsistency or "actual conflict" between such a provision for compensation between spouses and the Indian Act .

 

89.              I would answer the constitutional question as follows:

 

Question:  Whether the provisions of Part 3 of the Family Relations Act, R.S.B.C. 1979, c. 121, dealing with the division of family assets, are constitutionally applicable to lands in a reserve held by an Indian,  in view of the Indian Act, R.S.C. 1970, c. I‑6?

 

  Answer:  No.

 

90.              I would dismiss the appeal. No order as to costs was made by the Supreme Court of British Columbia nor by the Court of Appeal. I would likewise make no order as to costs.

 

                   Appeal dismissed.

 

                   Solicitors for the appellant: Braidwood & Company, Vancouver.

 

                   Solicitors for the respondent: Gardner, Snarch & Allen, Vancouver.

 

                   Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.

 

                   Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General for Ontario, Toronto.

 

                   Solicitor for the intervener the Attorney General of Canada: The Department of Justice, Vancouver.

 

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